1.License and Limitations.
Subject to the terms and conditions of this
Agreement, HHIS grants to Licensee a non-exclusive, non-transferable,
revocable limited license to access and use the Licensed Software in
Executable Code form (that is, the fully compiled version of a software
program that can be executed by a computer and used by an end user
without further compilation) solely for Licensee's internal business
purposes in accordance with the limitations set forth herein. For
purposes of this Agreement, "Documentation" means any instructions
and/or manuals provided to Licensee as part of the software, including
without limitation any on-line help screens.
Licensee acknowledges that the Licensed
Software and its structure, organization, and Source Code (the human
readable version of the software program that can be compiled into
Executable Code) constitute valuable trade secrets of HHIS. Accordingly,
Licensee agrees not to (a) modify, adapt, alter, translate, or create
derivative works from the Licensed Software; (b) merge the Licensed
Software with other software; (c) sublicense, lease, rent, loan, or
otherwise transfer the Licensed Software to any third party, (d)
reverse engineer, decompile, disassemble, or otherwise translate or
attempt to derive the Source Code for the Licensed Software; (e)
copy or otherwise imitate the look and feel of the displayed Licensed
Software; or (f) otherwise use or copy the Licensed Software.
Licensee's Responsibility of Account Access. It is Licensee's
sole responsibility to keep all user names and passwords confidential.
Licensee shall be solely responsible for all use of its accounts and
passwords and all consequential, indirect, exemplary, special or
incidental damages resulting therefrom.
2.License Fees and Payment.
During the initial term of this Agreement, Licensee agrees to pay
License Fees to either HHIS or as specified in the Order Form. During
any renewal term, Licensee shall pay such license fees as provided in
HHIS' or its agent's billing statement.
TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, HHIS LICENSES THE LICENSED SOFTWARE AND
PROVIDES ANY RELATED SUPPORT SERVICES ("SUPPORT SERVICES") "AS IS"
AND WITH ALL FAULTS. WITH RESPECT TO THE LICENSED
SOFTWARE AND SUPPORT SERVICES, HHIS HEREBY DISCLAIMS
ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED,
OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS
OF OR RELATED TO MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, LACK OF VIRUSES,
ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, OR DATA,
FREEDOM FROM ERRORS, UNINTERRUPTED OPERATION, NEGLIGENCE OR LACK OF
WORKMANLIKE EFFORT, QUIET ENJOYMENT, QUIET POSSESSION; NOR
ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE
OF PERFORMANCE, OR TRADE USAGE. THE ENTIRE RISK ARISING OUT
OF USE OR PERFORMANCE OF THE LICENSED SOFTWARE AND ANY
SUPPORT SERVICES REMAINS WITH LICENSEE. LICENSEE ACKNOWLEDGES
THAT IT HAS NOT RELIED ON ANY OTHER WARRANTIES OTHER THAN THE
EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT. THE FOREGOING
EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS
AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE FEES CHARGED
AND, THUS, THIS DISCLAIMER SHALL APPLY TO THE MAXIMUM EFFECT
PERMITTED BY APPLICABLE LAW. YOU ARE SOLELY RESPONSIBLE FOR
THE COMPLETENESS AND ACCURACY OF ANY BIDS PREPARED USING THE
4.Limitation of Liability and Remedies.
Limitation of Liability.
EVEN IF HHIS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH
DAMAGES, IN NO EVENT WILL HHIS BE LIABLE TO LICENSEE OR ANY THIRD PARTY
FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES,
INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOST BUSINESS
OPPORTUNITIES, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS
INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY
(INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER
PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF OR IN ANY WAY RELATED
TO THE USE OF, OR INABILITY TO USE, THE LICENSED SOFTWARE OR THE SUPPORT
SERVICES, RELIANCE ON OR USE OF INACCURATE, OUTDATED, OR INCOMPLETE
INFORMATION ENTERED IN THE SOFTWARE, OR SOFTWARE CALCULATIONS, AND EVEN IN
THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
BREACH OF CONTRACT, OR BREACH OF WARRANTY.
NOTWITHSTANDING ANY DAMAGES
THAT LICENSEE OR A THIRD PARTY MIGHT INCUR FOR ANY REASON WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL
DIRECT, INDIRECT, OR GENERAL DAMAGES), HHIS' TOTAL CUMULATIVE LIABILITY,
AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY, IN CONNECTION WITH THIS
AGREEMENT, THE LICENSED SOFTWARE, AND THE SUPPORT SERVICES, WHETHER IN
CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF LICENSE FEES
PAID BY LICENSEE DURING THE CURRENT TERM OF THIS AGREEMENT. LICENSEE
ACKNOWLEDGES THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET
FORTH IN THIS AGREEMENT AND THAT HHIS WOULD NOT ENTER INTO THIS AGREEMENT
WITHOUT THESE LIMITATIONS ON ITS LIABILITY AND AVAILABLE REMEDIES. THE
FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN
ITS ESSENTIAL PURPOSE.
5.Term and Termination.
The term of this Agreement will begin on the Effective Date
and will continue for one (1) month. This Agreement may be
renewed for additional one (1) month terms upon Licensee's
timely payment of the subsequent month's user fees, at HHIS'
then-current rates, as billed by HHIS or its agent.
Licensee may terminate this Agreement at any time, with or
without cause, upon written notice to HHIS. HHIS may
terminate this Agreement, effective immediately upon
written notice to Licensee, if (a) Licensee breaches any
provision in Section 1.2 and does not cure the breach within
ten (10) days after receiving written notice thereof from
HHIS, or (b) Licensee breaches any other provision of this
Agreement and does not cure the breach within thirty (30)
days after receiving written notice thereof from HHIS.
Effect of Termination.
Upon termination or expiration of this Agreement for any
reason, all licensed rights granted in this Agreement will
immediately cease, HHIS will immediately stop providing any
Support Services, Licensee's access to the Licensed Software,
including without limitation access to any content entered by
Licensee, will be immediately disabled, and any Licensee's
data may be deleted. Licensee acknowledges and agrees that
it shall not be entitled to any refund of previously-submitted
or paid License Fees and that such fees were paid voluntarily
and for access to the Licensed Software that Licensee obtained
prior to such termination. Under no circumstances will HHIS
be responsible for lost or inability to access any data due
to the termination of this Agreement.
This Section 5 and Sections 1.2, 1.3, 2, 3, 4, and 6 will
survive expiration or termination of this Agreement for any
The Licensed Software and Documentation, and all copyrights,
trademarks, service marks, trade secrets, patents, patent
applications, moral rights, contract rights, and other
proprietary rights therein, are the exclusive property of
HHIS. All rights in and to the foregoing not expressly
granted to Licensee in this Agreement are reserved by HHIS.
Licensee shall not remove, alter, or obscure any proprietary
notices or labels (including copyright notices) of HHIS.
Third Party Information.
The Licensed Software may include links, hyperlinks,
references, third party sites, or information about third
parties and/or third party's products or prices (collectively,
the "Third Party Information"). HHIS does not have control
over or responsibility for such third parties or such Third
Party Information, and such third parties are solely responsible
for any such content or sites.
No Maintenance or Support.
HHIS is not required to provide any maintenance or support
services with respect to the Licensed Software under this
Licensee may not assign or transfer, by operation of law or
otherwise, any of its rights under this Agreement (including
its licenses with respect to the Licensed Software) to any
third party (other than Licensee's Affiliates) without HHIS'
prior written consent. Any attempted assignment or transfer
in violation of the foregoing will be void.
All notices, consents and approvals under this Agreement
must be delivered in writing by personal delivery, electronic
mail or such other commercially reasonable method, postage
prepaid and signature or return receipt required, to the other
party at the address set forth on the Order Form, and will be
effective upon receipt or three (3) business days after being
deposited in the mail, whichever occurs sooner. Either party
may change its address by giving notice of the new address to
the other party.
This Agreement shall be construed and interpreted in
accordance with California law without regard to their
conflict of law principles. The parties hereby consent
to the exclusive jurisdiction of the state and federal
courts located in Orange County, California, for resolution
of any disputes arising out of this Agreement.
If any legal action is brought to enforce this Agreement,
the prevailing party will be entitled to receive its
attorneys' fees, court costs, and other collection expenses,
in addition to any other relief it may receive.
All waivers must be in writing. Any waiver or failure to
enforce any provision of this Agreement on one occasion will
not be deemed a waiver of any other provision or of such
provision on any other occasion.
If any provision of this Agreement is unenforceable, such
provision will be changed and interpreted to accomplish
the objectives of such provision to the greatest extent
possible under applicable law and the remaining provisions
will continue in full force and effect.
This Agreement constitutes the entire agreement between the
parties regarding the subject hereof and supersedes all
prior or contemporaneous agreements, understandings, and
communication, whether written or oral. This Agreement
may be amended only by a written document signed by both